JUDGMENT
Santosh Duggal, J.
(1) In this revision petition, the order passed by the trial judge is under challenge, whereby leave to defend the suit was declined The suit was under the provisions of Order 37 Cpc, based primarily on a cheque dated 8th September, 1989 for Rs. 27.600.00 , and also on a written contract between the parties, whereby the plaintiff in the suit had undertaken construction work for the defendants, and the mode of payment was settled by means of the said agreement. .
(2) According to the plaintiff’s case, as per terms of the agreement 20% of the total contract amount was payable to the plaintiff after completion of pit and shaft up to the terrace level. The allegation was that he had completed his work, and then called upon the defendants by means of letter dated 29th August, 1989 to release payment of 20% clearly staling that the work had been completed up to the stage of terrace as per terms of the agreement. It was thereafter that the cheque dated 8th September, 1989 was issued, but the same on being presented to the bank was received back with the remark “stop payment” and “refer to drawer”. A decree was, therefore, sought by invoking the provisions of section 37 of the Code Civil Procedure on the basis of the cheque as also the written contract.
(3) The petitioners while seeking leave to defend did not dispute the existence of the contract between the parties nor the terms thereof. Receipt of letter dated 29th August, 1989 was also not denied. Issuance of the cheque was also admitted. The only plea taken was that this amount was paid in advance towards completion of the work up to the stage of overhead, and above the terrace level, and that after the cheque had been taken by the plaintiff, (respondent herein), on the representation that the said work had been completed by him, the defendants inspected the site and discovered that the work had not been completed as per terms of the agreement, and then he immediately took steps to stop payment. The trial court examined this defense as set out in the application, and found it to be totally sham and illusory, and thus declined to grant leave to defend, as prayed for.
(4) The petitioners have reiterated the same pleas in the present revision petition, as set out in the application for leave to defend. Mr, J.P. Gupta during hearing has again and again tried to rake up the issue of the work having not been carried out as per terms of the agreement, and the payment having been stopped as a consequence of that. His plea is that the defendants should have allowed to’ prove their defense. The learned counsel has added that appropriate condition, even of deposit of the suit amount be imposed.
(5) I have heard learned counsel for both the parties and have perused the plaint, contents of the written agreement, and the letter dated 29th August, 1989. I find that the agreement is very unambiguous in its terms, and as per terms of this writtencontract, 20/o of the a mount was payable on completion of the pit and shaft up to the terrace level, vide clause (b).
(6) What is sought to be pleaded now, namely, that this payment was to be advance payment and at a stage above the terrace level, is against the terms of the agreement. To entertain such a plea would be allowing the defendants to prove something contrary to the provisions of the written contract, which is not legally permissible, in view of the provisions of section 92 of the Evidence Act. The defendants had opportunity to satisfy themselves as to whether the work had been so completed or not when the plaintiff informed them in writing by letter dated 29th August, 1989, which was received by some one on their behalf the same day. There is not even a whisper of suggestion that this letter was not delivered to the defendants.
(7) It has been pointed out by Mr. Rajivu Gpta, appearing for the respondent, (plaintiff in the suit), that in fact the defendant No. 2 is having his residence in the same premises where the work was being carried out. This fact is abundantly established on record from the agreement and other correspondence. Even the address as given in the affidavit filed with the application for leave to defend is the same, where the work was being carried out: In view of this, the defense put up that the cheque had been issued by the defendants on plaintiff’s representation that the work had been completed in accordance with the specification end terms of the contract, and that on subsequent inspection the defendants found that it was not so, is to say the least totally dishonest. The provisions of Order 37 Rule 3 (5) Civil Procedure Code are not on the statute to help dishonest people to contest genuine claims of citizens, and drag on litigation in courts.
(8) On the face of the record, it is not a case where discretion as contemplated in the decision of the Supreme Court, reported as M/s. Mechalec Engineers & Manufacturers v. M/s. Basic Equipment Corporation, on which Mr. J.P. Gupta placed reliance, can be asked for much less granted.
(9) I find no merit in this revision petition as I am satisfied that the application for leave to defend was rightly dismissed, as it did not disclose any substantial defense. On the other hand, the defense intended to be set up was false and vexatious.
(10) Dismissed.